DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

FOR OFFICIAL USE ONLY

ex-CSSN, USNR
Docket No. ND06-00467

Applicant’s Request

The application for discharge review was received on 20060208.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061130.  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“I’m requesting change of status of my discharge in order to reenter military service.  When I was separated from the Navy I was charge with the using of drugs the board came to this conclusion incorrectly I was unaware that I had ingested drugs.  I F_ R_ (Applicant) a citizen of the United States of America and with all my respects. I please ask for mercy to the Board in the review of my case carfully, and please grand me the opportunity to serve or to continue mi service in the military.  I’m a man of integrity with no criminal record and true Cristian moral standards and principals.  As a second generation of immigrant family from the country of Mexico.  I feel it is my obligation and responsibility to do my duty in the fight to preserve the Freedom of the free world for this very present and future generations.  Thank you for this right and reviewing this application.

[signed] F_R_ (Applicant)
2006-01-25”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Letter of Deficiency from Counsel for Respondent, NLSO NW Detachment Whidbey Island, dtd February 17, 2005 (2 pgs)
Discharge Letter from Commanding Officer, Naval & Marine Corps Reserve Center, Spokane WA, undated

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive:  None
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20021030		Date of Discharge:  20050305

Length of Service (years, months, days):

	Inactive:  02  04  06

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  34

Years Contracted:  8

Education Level:  12	(GED)			AFQT:  40

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (2) 		Behavior:  3.0 (2)			OTA:  3.00 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized:  National Defense Service Medal

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events: 

021030:	Applicant completed Drug and Alcohol Abuse Statement of Understanding.

041021:	NAVDRUGLAB, SAN DIEGO, CA reported Applicant’s urine sample, received 041008, tested positive for THC.

041005:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse.

041005:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to submit statements to the administrative board or to the separation authority in lieu of a board and to representation at the administrative board by qualified counsel.

050315:	GCMCA, Commander, Navy Region Northwest, directed the Applicant's discharge under other than honorable conditions by reason of misconduct drug abuse.

050330:	Applicant discharged Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.   [NAVPERS 1070 entry indicates that an Administrative Board was held and that a final determination was made to discharge from the Naval Service.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050330 by reason of misconduct due to drug abuse (A and B) with a service characterization of under other than honorable conditions.  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

The Applicant implies through his issues and the documentation submitted that his discharge is improper because he did not knowingly ingest drugs.  There is credible evidence in the record that the Applicant used illegal drugs.  Mandatory processing for separation is required for Sailors who abuse illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Applicant implies that his discharge should be changed due to his post-service conduct.   Additionally, the Applicant requests that his discharge be changed to facilitate reenlistment.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any post-service documentation for the Board to consider.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment, enlistment or educational opportunities.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until 28 April 2005, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a, wrongful use of a controlled substance.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil”.

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023